Citation Nr: 0115875
Decision Date: 06/11/01 Archive Date: 06/18/01
DOCKET NO. 00-21 677 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for pneumonia.
2. Entitlement to a compensable initial disability rating
for service-connected scars, removal of synovial cyst, left
lower extremity and face.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Lunger, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1955 through
December 1959.
A perfected appeal to the Board of Veteran's Appeals (Board)
of a particular decision entered by a Department of Veterans
Affairs (VA) regional office (RO) consists of a Notice of
Disagreement (NOD) in writing received within one year of the
decision being appealed and, after a Statement of the Case
(SOC) has been furnished, a substantive appeal received
within 60 days of the issuance of the statement of the case
or within the remainder of the one-year period following
notification of the decision being appealed.
This matter comes before the Board on appeal from a January
1999 rating decision of the RO in St. Petersburg, Florida,
which, inter alia, denied the veteran's claim for service
connection for pneumonia and granted the veteran's claim for
service connection for a scar on his leg and a scar on his
face, assigning a non-compensable rating for those
conditions. The veteran expressed disagreement with the
rating decision insofar as it pertained to those issues in
February 1999. A SOC was issued in August 2000 and a
substantive appeal was received in October 2000.
A review of the record reflects that in addition to the
issues set forth on the first page of this decision, the
veteran appears to have raised, in a statement made on his
October 2000 substantive appeal, a claim for entitlement to
service connection for bilateral hearing loss. The claims
file does not indicate that this issue has been addressed by
the RO; as it is not properly before the Board at this time,
it is hereby referred to the RO for appropriate action.
In addition, the January 1999 rating decision denied, as not
well-grounded, the veteran's claim for service connection for
injury to his low back, right shoulder and elbow. The
November 1999 rating decision denied, as not well-grounded,
the veteran's claim for service connection for a bilateral
foot condition. The veteran did not appeal these decisions,
and they are now final. 38 U.S.C.A. § 7105(b), (c) (West
1991); 38 C.F.R. §§ 3.160(d), 20.302(a) (2000). However, the
Board notes that Section 7(b)(1) of the Veterans Claims
Assistance Act provides that, with regard to claims denied as
being "not well-grounded" between July 14, 1999 and
November 9, 2000, the Secretary of Veterans Affairs shall,
upon the request of the claimant or on the Secretary's own
motion, order the claim readjudicated as if the denial had
not been made. Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, § 7(b)(1), 114 Stat. 2096, 2099-2100 (2000).
Thus, the issue of entitlement to service connection for a
bilateral foot condition is referred to the RO for
appropriate consideration.
FINDINGS OF FACT
1. All evidence necessary for the disposition of this appeal
as it pertains to service connection for pneumonia has been
obtained.
2. The medical evidence of record does not reflect that the
veteran was treated for pneumonia during service, or that he
currently has any residual disability related to pneumonia.
CONCLUSION OF LAW
Pneumonia was not incurred in or aggravated by service.
38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As an initial matter, the Board notes that there has been a
significant change in the law during the pendency of this
appeal. On November 9, 2000, the President signed into law
the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000). Among other things, this
law eliminates the concept of a well-grounded claim,
redefines the obligations of the Department of Veterans
Affairs (VA) with respect to the duty to assist, and
supercedes the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA cannot assist in the development of a claim that is
not well grounded.
The record in this case, however, reflects that with respect
to this claim, the requirements of this new law have been
satisfied. Thus, a decision may be entered with respect to
that claim. In this regard, the Board observes that with
respect to the aforementioned service connection claim, the
record establishes that the veteran has been informed of that
evidence which would be necessary to substantiate his claim,
and the record includes the veteran's service medical records
and post-service private medical records. Moreover, there
has been no assertion by the veteran or his representative
that additional relevant treatment records are available.
Under these circumstances, the Board concludes that VA has
met its duty to assist in developing the facts pertinent to
this claim pursuant to the provisions of the recently enacted
Veterans Claims Assistance Act of 2000, and that no further
development in this regard is required.
To establish service connection for a claimed disability, the
facts, as shown by the evidence, must demonstrate that a
particular disease or injury resulting in current disability
was incurred during active service. See 38 U.S.C.A. § 1131
(West 1991); 38 C.F.R. § 3.303 (2000). When a disease is
first diagnosed after service, service connection may
nevertheless be established by evidence demonstrating that
the disease was in fact incurred during the veteran's
service, or by evidence that a presumption period applied.
See 38 C.F.R. §§ 3.303, 3.307, 3.309. Disability which is
proximately due to or the result of a service connected
disease or injury shall be service connected. 38 C.F.R.
§ 3.310.
"Generally, to prove service connection, a claimant must
submit (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances lay testimony,
of in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury."
See Pond v. West, 12 Vet. App. 341, 346 (1999); see also Rose
v. West, 11 Vet. App. 169, 171 (1998)
The service medical records reflect that in April 1957 the
veteran was treated for complaints of a headcold and cough.
He was given cough syrup, and no further entries were
recorded. The report of the veteran's separation physical
reveals that the chest x-ray taken in connection with his
discharge from service was negative.
The veteran's medical records from VA Medical Center in
Orlando, Florida show that he was treated at this facility on
numerous occasions for various complaints. However, a
thorough review of these records reveals that the veteran
never included pneumonia or any other type of respiratory
condition in his reported medical history; nor did he ever
seek treatment for respiratory complaints. In fact, notes
from a physical conducted in April 1997 recorded a past
medical history "negative for respiratory disorders".
In this case, the medical evidence does not support the
veteran's contention that he was treated for pneumonia in
service and does not substantiate a current disability
related to this illness. Post-service medical records do not
show treatment of the veteran for any type of respiratory
condition at any time.
The veteran's lay statements to the effect that he believes
he had pneumonia during service, with current residual
disability, are not supported by objective medical evidence
and are not competent evidence to support a finding on a
medical question requiring special experience or special
knowledge. See Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).
Under these circumstances, the preponderance of the evidence
is against the conclusion that the veteran is entitled to
service connection for pneumonia. See Boyer v. West, 210
F.3d 1351, 1353 (Fed. Cir. 2000) ("[A] veteran seeking
disability benefits must establish . . . the existence of a
disability [and] a connection between the veteran's service
and the disability . . ."); Mercado-Martinez v. West, 11
Vet. App. 415, 419 (1998) ("In order for service connection
for a particular disability to be granted, a claimant must
establish he or she has that disability and that there is 'a
relationship between the disability and an injury or disease
incurred in service or some other manifestation of the
disability during service.' " [quoting Cuevas v. Principi, 3
Vet. App. 542, 548 (1992)]). The evidence for and against
the claim is not in relative equipoise; therefore, no
reasonable doubt issue is raised. 38 U.S.C.A. § 5107(b)
(West 1991); 38 C.F.R. § 3.102 (2000).
ORDER
Entitlement to service connection for pneumonia is denied.
REMAND
The veteran appealed the assignment by the RO of an original
or initial rating for his service-connected scars, removal of
synovial cyst, left lower extremity and face. There is a
"distinction between an original rating and a claim for an
increased rating" and this distinction "may be
important . . . in terms of determining the evidence that can
be used to decide whether the original rating on appeal was
erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126
(1999) (emphasis in original). For instance, where a veteran
appeals the initial assignment of disability rating, the
statement of the case should treat the appeal as one
expressing disagreement with the original rating award and
not as one for an increased evaluation because "this
distinction is not without importance in terms of VA
adjudicative actions". Fenderson, 12 Vet. App. at 132.
Moreover, the distinction "may be important . . . in terms
of determining the evidence that can be used to decide
whether an original rating on appeal was erroneous . . . ."
Fenderson, 12 Vet. App. at 126. For example, the rule
articulated in Francisco v. Brown -- that, where an increase
in the disability rating is at issue, the present level of
the veteran's disability is the primary concern -- does not
apply to the assignment of an initial rating for a disability
following an initial award of service connection for that
disability. Fenderson, 12 Vet. App. at 126; Francisco v.
Brown, 7 Vet. App. 55, 58 (1994). Instead, the evidence
contemporaneous with the claim and the initial rating
decision granting service connection should be most probative
of the degree of disability existing at the time that the
initial rating was assigned and should be the evidence "used
to decide whether an original rating on appeal was
erroneous . . . ." Fenderson, 12 Vet. App. at 126. If
later evidence indicates that the degree of disability
increased or decreased following the appeal of the initial
rating assigned for a disability, "staged" ratings may be
assigned for separate periods of time based on facts found.
Id.
The veteran's service medical records show that in April
1956, he had cysts removed and hydrocortisone was injected to
the areas. The report of the veteran's separation physical
examination reveals the veteran indeed had two scars; a 1"
oblique scar on the left lower leg and a 3/4" oblique scar,
mid temple.
The veteran's claim for service connection for the scars was
granted in the rating decision issued by the RO in January
1999, and 0 percent disability evaluation was assigned for
both scars.
A review of the claims folder reveals that the veteran was
not afforded a VA scar examination in connection with his
claim for service connection. Moreover, the file is devoid
of any description of the current state of the veteran's
scars. The Board believes that in order to assign an
appropriate disability rating to the veteran's scars, he
should be examined by a VA physician. Where the record does
not adequately reveal the current state of the claimant's
disability, as in the instant case, the fulfillment of the
statutory duty to assist requires a thorough and
contemporaneous medical examination. Suttman v. Brown, 5
Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1
Vet. App. 121, 124 (1991).
Moreover, as discussed above, the Veterans Claims Assistance
Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096
(2000), redefines the obligations of VA with respect to the
duty to assist and includes an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.
In accordance with the VCAA, a remand in this case is
required for compliance with the notice and duty to assist
provisions contained in the new law. In addition, because
the RO has not yet considered whether any additional
notification or development action is required under the
VCAA, it would be potentially prejudicial to the appellant if
the Board were to proceed to issue a decision at this time.
See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec.
Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg.
49,747 (1992)). Therefore, for these reasons, a remand is
required.
In an effort to assist the RO, the Board has reviewed the
claims file and identified certain assistance that must be
rendered to comply with the VCAA. However, it is the RO's
responsibility to ensure that all appropriate development is
undertaken in this case.
Additionally, the Board notes that in a rating decision dated
in August 2000, the RO denied the veteran's claim for service
connection for basal cell carcinoma of the left lower eyelid.
In his VA Form 9 received in October 2000, the veteran
referred to his left eyelid problem, and stated that he must
endure constant irritation of the eye. The Board has
construed this as an expression of disagreement with the
August 2000 rating decision which denied service connection
for basal cell carcinoma of the left lower eyelid. As the
Form 9 was received with one year of notice of the August
2000 rating decision, the Board construes the October 2000
Form 9 as a timely notice of disagreement with respect to the
basal cell carcinoma of the left lower eyelid decision.
In such cases, there is authority determining that the
appellate process has commenced and that the appellant is
entitled to a statement of the case on the issue. See
Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown,
7 Vet. App. 398 (1995).
In this case, while the Board does not have jurisdiction to
decide the issue under the aforementioned guidance, the issue
of entitlement to service connection for basal cell carcinoma
of the left lower eyelid is to be remanded to the RO for
additional action.
In view of the foregoing, this case is REMANDED for the
following action:
1. The RO should, in accordance with
applicable procedures, consider whether
the veteran merits service connection for
basal cell carcinoma of the left lower
eyelid. If the benefit is not granted,
the RO should issue a statement of the
case addressing the issue of entitlement
to service connection for that disability
and provide the appropriate law and
regulations.
2. The RO should, with the promulgation
of the statement of the case, inform the
veteran that to complete the appellate
process with respect to the issue of
entitlement to service connection for
basal cell carcinoma of the left lower
eyelid he should complete a timely VA
Form 9, Substantive Appeal, and forward
it to the RO.
3. The RO should schedule the veteran
for a VA scars examination to evaluate
the severity of the scar on the veteran's
temple and the scar on his left lower
leg. All tests and consultations deemed
necessary by the examiner for diagnostic
purposes must be conducted. The examiner
must describe the scars as slight,
moderate or severe. A full description
of each scar, including location,
measurements, shape, tenderness,
adherence, texture, ulceration, elevation
or depression of skin, extent of tissue
loss, edema or keloid formation, color as
compared to normal skin, disfigurement,
should be provided. Color photographs of
the scars should be taken and submitted
with the report. Before evaluating the
veteran, the examiner must review the
claims file, in particular the veteran's
service medical records. A notation to
the effect that this review of the record
was accomplished should be included as
part of any examination report. The
claims folder should be made available to
the examiner for review before the
examination.
4. The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.
Thereafter, the RO should review the evidence and enter its
determination as to whether a compensable rating is warranted
for the veteran's service-connected scars. If the benefit
sought on appeal remains denied, the veteran and his
representative should be provided a supplemental statement of
the case (SSOC). The SSOC must contain notice of all
relevant actions taken on the claim for benefits, to include
a summary of the evidence and applicable law and regulations
considered pertinent to the issue currently on appeal. An
appropriate period of time should be allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
M. G. MAZZUCCHELLI
Acting Member, Board of Veterans' Appeals